Gerhard Terlinden v. John Ames

• Decision Date: 24 February 1902
• Docket Number: No. 475,475
• Citation: 46 L.Ed. 534,184 U.S. 270,22 S.Ct. 484
• Parties: GERHARD TERLINDEN, Appt. , v. JOHN C. AMES, United States Marshal for the Northern District of Illinois
• Court: U.S. Supreme Court

184 U.S. 270

22 S.Ct. 484

46 L.Ed. 534

GERHARD TERLINDEN, Appt.,

v JOHN C. AMES, United States Marshal for the Northern District of Illinois.

No. 475.

Argued January 6, 7, 1902.

Decided February 24, 1902.

August 15, A. D. 1901, Dr. Walther Wever, Imperial German Consul at Chicago, filed his complaint before Mark A. Foote, Esq., a commissioner of the United States in and for the northern district of Illinois, and specially authorized to issue warrants for the apprehension of fugitives from justice of foreign governments, stating that he was 'the duly accredited official agent and representative of the German Empire at Chi-

cago and also the Kingdom of Prussia, forming a part of said German Empire,' and charging that one Gerhard Terlinden, alias Theodor Graefe, a subject of the Kingdom dom of Prussia, did, within the first six months of the year 1901, 'commit within the jurisdiction of the said Kingdom of Prussia various crimes of forgery and counterfeiting and the utterance of forged papers,' in that as a director of the Gerhard Terlinden Stock Company, organized and doing business in said Kingdom, said Terlinden forged and counterfeited certain certificates of the stock of said company amounting to about a million and a half of marks, and put out, uttered, and disposed of the same to Robert Suermont of the city of Aachen, Prussia; the Amsterdamsche Bank, Netherlands; the Disconto Gesellschaft, a corporation doing business in Berlin, Prussia; and other persons and corporations, with felonious intent to cheat and defraud them respectively. The complaint further charged that Terlinden was at the time of committing said crimes a resident of the city of Duisburg and a citizen of said Kingdom of Prussia; that he was a fugitive from said Kingdom; that on or about the 1st day of July, 1901, he fled into the jurisdiction of the United States of America for the purpose of seeking an asylum therein; that he was now said to be concealed within the northern district of Illinois or in the eastern district of Wisconsin; and that the crimes with which he was charged were crimes embraced within the treaty of extradition between the United States and the Kingdom of Prussia, concluded on the 16th day of June, 1852, and ratified May 30, 1853.

It was therefore prayed that a warrant be issued for the apprehension and commitment of Terlinden 'in order that the evidence of his criminality may be inquired into, and the said Gerhard Terlinden, alias Theodor Graefe, may be extradited and delivered up to the justice of the said Kingdom of Prussia, in accordance with the stipulations of said treaty and the acts of Congress passed in pursuance thereof.'

The complaint was duly verified and the commissioner issued his warrant, which was placed in the hands of John C. Ames, United States marshal in and for the northern district of Illinois, and Terlinden was apprehended and held to be dealt with according to law.

Subsequently and on September 25, 1901, Dr. Wever, in his capacity aforesaid, made another complaint before the commissioner, charging (1) the forging of a large number of stock certificates of the Gerhard Terlinden Stock Company; (2) uttering said stock certificates, well knowing them to be forged; (3) forging and counterfeiting the steel stamp of the Royal Prussian revenue office at Duisburg, Prussia; (4) imprinting said forged steel stamp upon the forged certificates of stock so as to make it appear that the tax required by the Prussian revenue law had been paid on said certificates issued by the company in said Kingdom, and thus to give said forged certificates the appearance of genuineness; (5) uttering forged certificates of stock with said forged stamp thereon; (6) forging the acceptance of one Heinrich Schulte to a certain draft for 9,582 marks and 35 pfennings, and uttering the same; (7) forging the acceptance of one Wilhelm Seven to two certain drafts for the sums of 26,250 marks and of 25,912 marks and 45 pfennings, respectively, and uttering the same; or causing all these things to be done; 'contrary to the laws of the Kingdom of Prussia.'

It was stated that these several crimes were fully shown by the testimony of a number of witnesses heard before the examining judge of the Landgericht at Duisburg in the Kingdom of Prussia, 'a court of competent jurisdiction in which the matter of the penal investigation instituted against the said Gerhard Terlinden, alias Theodor Graefe, is now pending, in order that he may answer for said several crimes;' and with the complaint were submitted copies of the depositions of the witnesses together with a copy of the warrant of arrest issued by that court against Terlinden, 'and of the provisions of the Penal Code of the German Empire applicable to said several crimes and providing punishment therefor,' all of which were duly authenticated; and also a verified English translation thereof. This second complaint also showed that the crimes charged were committed within the jurisdiction of the Kingdom of Prussia; and that Terlinden was, at the time of committing the same, a subject of that Kingdom; and the commissioner in

accordance with the prayer of the complaint issued another warrant, which was served on Terlinden the following day, he being discharged from arrest on the first warrant. On the 17th of October, before any evidence was taken before the commissioner, Terlinden presented to the district court of the United States for the northern district of Illinois his petition praying for a writ of habeas corpus on the following grounds:

'1. No treaty or convention for the extradition of fugitives from justice exists between the United States and the German Empire.

'2. That the treaty or convention for the extradition of fugitives from justice concluded between the United States and the Kingdom of Prussia on the 16th day of June, 1852, and ratified May 30, A. D. 1853, was terminated by the creation of the German Empire and the adoption of the Constitution of said Empire in A. D. 1871, and that no treaty or convention for the extradition of fugitives from justice has been concluded between the United States, on the one part, and the Kingdom of Prussia or the German Empire, on the other, since said time.

'3. Said complaint does not charge an extraditable offense under the provisions of the treaty of 1852, concluded between the United States and Prussia and other German states, were said treaty still in force and of binding effect.

'4. Your petitioner is not guilty of any extraditable offense under the provisions of said treaty of 1852, were said treaty still in force and of binding effect.

'5. All proceedings had or attempted to be had before said commissioner under said complaint and warrant are illegal, void, and without authority in law because said commissioner did not have jurisdiction over the person of this petitioner.'

The writ of habeas corpus was issued and the marshal for the northern district of Illinois filed his return October 21, setting forth that he 'arrested said petitioner within said district on the 26th day of September, 1901, upon a warrant duly issued by Mark A. Foote, a United States commissioner specially appointed and authorized by the district court of the United States for the northern district of Illinois to hear applications for extradition and to issue warrants therefor, which

said warrant was duly issued by said commissioner upon a complaint duly made by Walther Wever, Imperial German Consul at Chicago as representative of the Kingdom of Prussia, charging said Gerhard Terlinden, who, it appears, falsely assumed in this country the name of Theodore Graefe, with having, as a subject of the Kingdom of Prussia and within the jurisdiction of the said Kingdom, committed the crimes of forgery, counterfeiting, and the utterance of forged instruments, and with being a fugitive from justice of said Kingdom of Prussia. . . .'

The matter was brought on for hearing October 21, and after arguments of counsel the court gave leave to present briefs and adjourned the hearing to October 28. On that day the relator filed with the clerk of the court a traverse, reciting that with the complaint of September 26 there were filed 'copies of the original testimony and translations of the same contained in the depositions taken before certain court officials in the Empire of Germany, relative to the alleged offenses with which said complaint charges your petitioner; that said complaint refers to said depositions so filed in words following, to wit:' [Then setting forth the passages of the complaint to the effect that Dr. Wever therewith submitted 'to the commissioner and files with this complaint a copy of all depositions of witnesses taken in said matter, together with a copy of the warrant of arrest issued by said court against the said Gerhard Terlinden, alias Theodor Graefe, and of the provisions of the Penal Code of the German Empire applicable to said several crimes and providing punishment therefor.']

The traverse then continued:

'That the provisions of the Criminal Code of the German Empire applicable to the facts and circumstances of this case as shown by the evidence hereto annexed are §§ 240, 47, 49 1st paragraph; § 360 4th and 5th paragraphs; § 275 and § 56 of the Code of Criminal Procedure, also § 234 of the Civil Code, a correct translation of which sections are hereto annexed and marked Exhibit 'B' and made a part hereof.

'That said depositions so filed do not show or tend to show that your petitioner is guilty of any extraditable offense; that

a copy of said deposition so referred to in said complaint and heretofore filed with said commissioner is hereto attached marked Exhibit 'A' and made a part of this traverse.

'Wherefore your petitioner prays that the return of the United States marshal herein be dismissed and your petitioner discharged.'

Copies of depositions were attached to the alleged traverse; but no copy of the...